Can a lawyer who shares office space with a part-time assistant county attorney defend juveniles in juvenile-court public-offense cases?

Plain-English summary

The committee considered whether a lawyer who shares office space with another lawyer employed as a part-time assistant to the county attorney may represent juveniles in juvenile court proceedings where the juvenile is charged with a public offense. It answered no.

The committee built on prior opinions holding that partners of, or assistants to, prosecuting attorneys may not represent individuals charged in criminal cases in any court of criminal jurisdiction. It applied its office-sharing test, which asks whether clients or the public might be led to believe that affiliated lawyers have such a close personal and professional relationship as to imply special advantage or unusual influence. The committee concluded the public would believe that an attorney sharing office space with a lawyer whose duties included representing the Commonwealth in juvenile court could imply special advantage or unusual influence in the proceedings. It saw no real distinction between the juvenile court situation and the criminal law situation as to representation, so the same standards established for criminal proceedings applied to juvenile court proceedings.

Currency note

The Kentucky Bar Association has flagged this opinion as overruled by KBA E-444 (2018). This opinion was issued in 1981 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Treat this page as historical context, not current guidance. Verify against the current rules and KBA E-444 before relying on any specific rule mentioned here.

Common questions

Q: Could a lawyer sharing office space with a part-time assistant county attorney defend juveniles in public-offense cases?

A: No, under this opinion. The committee concluded the office-sharing arrangement could imply special advantage or unusual influence, so the representation was barred. The opinion has since been overruled by KBA E-444 (2018).

Q: Why did the committee treat juvenile cases like criminal cases?

A: It saw no real distinction between juvenile court and criminal proceedings as to representation, so the standards established for criminal cases applied to juvenile court.

Q: What test did the committee apply to the office-sharing arrangement?

A: Whether clients or the public might be led to believe that affiliated lawyers have such a close personal and professional relationship as to imply special advantage or unusual influence.

Background and rules framework

The opinion rests on Canon 9's appearance-of-impropriety principle as applied to office-sharing with a prosecutor, and on the line of KBA opinions barring a prosecutor's associates from criminal-defense work. The modern analogs are Model Rule 1.7 (concurrent conflicts) and Model Rule 1.10 (imputation of conflicts within a firm). The committee's office-sharing test turned on public perception of special advantage or unusual influence rather than on a strict partner-or-associate relationship.

Citations and references

Rules of Professional Conduct:

• Canon 9 (appearance of impropriety); modern analogs Model Rule 1.7 and Model Rule 1.10

Other opinions cited:

• KBA E-44, E-61, E-159, E-167, and E-194 (prosecutors, their associates, and criminal representation)

See also

• KBA Ethics Op. E-262: Prosecutors and Licensing Boards
• KBA Ethics Op. E-257: Part-Time Prosecutor Conflicts
• KBA Ethics Op. E-248: IV-D County Attorney as Defender

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-238.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-238
Issued: March 1981
Overruled by E-444 (2018)
Question:

May an attorney who shares office space with another attorney who is employed as a part-time assistant to the County Attorney represent juveniles as their attorney in juvenile court proceedings wherein the juvenile is being brought before the court for committing a public offense?

Answer:

No.

References:

Canon 9; Opinion KBA E-44, E-61, 159, E-167, E-194

OPINION

Prior Ethics Opinions of the Kentucky Bar Association have consistently held that partners of prosecuting attorneys or assistants to prosecuting attorneys are prohibited from representing individuals charged in criminal cases in any court of criminal jurisdiction.
The situation presented by the question posed for this Ethics Opinion does not alter the answer to the question. First, the Ethics Committee of the Kentucky Bar Association has addressed office space sharing arrangements by an attorney with a prosecutor and has adopted the test of "Whether clients or the public might be led to believe that lawyers so affiliated have such close personal, and professional relationship as to imply special advantage or unusual influence." The Ethics Committee cannot help but conclude that a client or the public would believe that an attorney sharing office space with another attorney whose duties included the representation of the Commonwealth in a juvenile court action, could imply special advantage or unusual influence in the proceedings. Second, the Ethics Committee sees no real distinction between juvenile court situation and the criminal law situation, so far as representation by an attorney is concerned. The same ethical standards established for representation in criminal proceedings should apply to juvenile court proceedings.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.